Fed up with what he says is the governor's failure to properly fund his overwhelmed office, the state's lead public defender ordered Gov. Jay Nixon this week to represent a poor person in Cole County this month.
Michael Barrett said he was using a provision of state law that allows him in extraordinary circumstances to delegate legal representation "to any member of the state bar of Missouri." He's starting with the state's highest-profile lawyer: Nixon.
Barrett says the governor has repeatedly declined to give the public defender system the money it requests and is withholding promised funding increases this year.
"Providing counsel to poor people who face incarceration is the obligation of the state. It's not fair to go after private attorneys who are trying to pay the rent when they had nothing to do with contributing to this," Barrett said in an interview Wednesday.
Barrett never exercised this power before because he thought it was wrong to place the burden of public cases on private attorneys "who have in no way contributed to the current crisis," he wrote in a letter to the governor dated Tuesday.
"However, given the extraordinary circumstances that compel me to entertain any and all avenues for relief, it strikes me that I should begin with the one attorney in the state who not only created this problem, but is in a unique position to address it," Barrett wrote, referring to Nixon, a Democrat who was a four-term attorney general before becoming governor.
Studies have found that the Missouri Public Defender System lacks the resources or staff to serve the state's neediest. The system has struggled with high caseloads, high turnover, low salaries and tired, overworked attorneys for years.
The Missouri constitution allows the director of the public defender system to assign cases to any lawyer in the state, regardless of whether the lawyer is a public defender, Barrett said.
Just this June, the legislature granted the public defender system a $4.5 million increase, which would've helped in hiring 10 more employees and some private attorneys on a contractual basis. The office currently employs more than 370 attorneys. Officials with the public defender's office had asked for a $23.1 million boost, while Nixon recommended a $1 million increase.
Last month, Barrett and the Missouri State Public Defender Commission filed a lawsuit claiming that Nixon withheld $3.5 million of that $4.5 million increase. Barrett claims Nixon is targeting the public defender system for budget cuts while leaving more money for other programs he likes.
Nixon's office could not be immediately reached for comment Wednesday night.
A 2014 study found that the state's public defender system needs almost 270 more attorneys to meet its current case volume, which fluctuates between 70,000 and 100,000 cases every year. In 2009, Missouri's was the second-lowest-funded public defender system in the country.
Now, Barrett says that he has even fewer lawyers than when that study was done. He's lost 30 lawyers because he doesn't have the money to hire replacements as employees leave for private law firms.
Meanwhile, the system's caseload has gone up 12 percent over the past year to about 82,000 cases, Barrett said. Each of his lawyers has to handle 125 to more than 200 cases at a time.
"The Department of Justice Civil Rights Division says, 'It's so dire.' Everyone says, 'It's so dire,'" Barrett said.
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